833 F.

2d 1438

In re REQUEST FOR ACCESS TO GRAND JURY

MATERIALS GRAND JURY
NO. 81-1, MIAMI.
Appeal of Judge Alcee L. HASTINGS.
No. 87-5857.

United States Court of Appeals, Eleventh Circuit.

Nov. 24, 1987.

Terence J. Anderson, Coral Gables, Fla., for appellant Judge Alcee L.

Hastings.
Alan I. Baron, Chief Counsel, U.S. House of Representatives, Committee
on the Judiciary, Washington, D.C., Jo Ann Farrington, U.S. Dept. of
Justice, Public Integrity Section, Crim. Div., Washington, D.C., for
appellee.
Appeal from the United States District Court for the Southern District of
Florida.
Before MERRITT* , JONES**, and
GUY*** , Circuit Judges.
MERRITT, Circuit Judge:

This appeal is from an order granting the request of the Committee on the
Judiciary of the United States House of Representatives for immediate access to
all the confidential records of Grand Jury No. 81-1-GJ (MIA) for use in
connection with the Committee's impeachment inquiry concerning United
States District Judge Alcee L. Hastings of the Southern District of Florida.
Judge Hastings contends that a much greater showing of "particularized need"
must be made under Rule 6(e), Fed.R.Crim.P., than would normally be the case
for the release of secret grand jury information because disclosure to the
legislative branch for purposes of impeachment raises significant separation of
powers considerations not present in the usual case. We conclude that the

Committee's showing is sufficient and affirm the order of the District Court.
I.
2

On December 29, 1981, the Grand Jury, sitting in the Southern District of
Florida, returned indictments charging a conspiracy in which William A.
Borders, Jr., a friend of Judge Hastings, would act as an intermediary for
Hastings in connection with a bribe to fix a federal criminal case and with
obstruction of justice to conceal the bribe. Following a jury trial, Borders was
convicted on March 29, 1982. Judge Hastings was tried separately and was
acquitted by a jury on February 4, 1983. The impeachment inquiry appears to
be focused on the same crime considered by the jury and on Judge Hastings'
defense to those charges.

On March 17, 1983, two United States District Judges filed a complaint with
the Eleventh Circuit requesting an investigation of Judge Hastings pursuant to
the Judicial Councils Reform and Judicial Conduct and Disability Act, 28
U.S.C. Sec. 372(c), to determine whether Judge Hastings had engaged in
conduct prejudicial to the effective and expeditious administration of the
business of the courts.

The Chief Judge of the Eleventh Circuit appointed an Investigating Committee

which conducted a three-year investigation. The Investigating Committee
sought and obtained the same grand jury materials which are at issue in this
case. See In re Petition to Inspect and Copy Grand Jury Materials, 735 F.2d
1261 (11th Cir.), cert. denied, 469 U.S. 884, 105 S.Ct. 254, 83 L.Ed.2d 191
(1984).

On August 4, 1986, the Investigating Committee submitted its report and

recommendations to the Judicial Council of the Eleventh Circuit. On
September 2, 1986, the Judicial Council adopted the Investigating Committee's
report and determined that "consideration of impeachment [of Judge Hastings]
may be warranted."

On March 17, 1987, the Judicial Conference of the United States concurred in
the determination of the Judicial Council and transmitted the Investigating
Committee's report and records to the Speaker of the House of Representatives.
The report and records were referred to the Committee on the Judiciary and an
impeachment inquiry was initiated. On March 23, 1987, House Resolution 128
was introduced. The resolution under consideration provides for the
impeachment of Judge Hastings for high crimes and misdemeanors. The

Judiciary Committee has made public the Investigating Committee's report and
supporting documents.
7

On July 15, 1987, the Honorable Peter Rodino, Chairman of the House
Judiciary Committee, wrote a letter to Chief Judge King of the Southern
District of Florida requesting that the United States District Court for the
Southern District of Florida deliver to the Subcommittee on Criminal Justice all
of the "records, transcripts, minutes and exhibits" of the grand jury that indicted
Judge Hastings. Rodino's letter stated that a full review of the complete record
of the grand jury was essential in order for the House impeachment inquiry to
be complete and "reach the degree of thoroughness necessary to ensure public
confidence that justice had been done...."

Although Congressman Rodino's letter did not contain an in-depth analysis of

why the Committee believed it was entitled to the grand jury records, it did
note that grand jury material was disclosed to the Committee during the Nixon
impeachment inquiry. See In re Report and Recommendation of June 5, 1972
Grand Jury Concerning Transmission of Evidence to the House of
Representatives, 370 F.Supp. 1219 (D.D.C.), mandamus denied sub nom.
Haldeman v. Sirica, 501 F.2d 714 (D.C.Cir.1974).

On August 5, 1987, Chief Judge King issued a sealed order giving the Judiciary
Committee access to the requested grand jury materials. (App., p. 13.)

10

On August 10, 1987, Judge Hastings filed an emergency motion to stay Judge
King's order and to unseal it. He also requested that the court grant him access
to the grand jury materials and that the grand jury materials be made public,
excepting such material as may be determined should remain secret to protect
significant interests of persons not involved in the present dispute.

11

After Judge King and the other judges of the District recused themselves, the
emergency motion was heard by Senior Circuit Judge John D. Butzner, Jr. of
the Fourth Circuit, sitting by designation. Judge Butzner held that (1) the
Judiciary Committee is entitled to the materials; (2) Judge Hastings' access to
the materials should be determined by Congress, since control over the timing
and extent of discovery in impeachment proceedings is ancillary to the
impeachment power that the Constitution vests in Congress; and (3) that no
need for public disclosure exists sufficient to justify an exception to the general
rule of grand jury secrecy mandated by Fed.R.Crim.P. 6(e)(2). (App., p. 164)
Judge Hastings now appeals the first of these rulings concerning the release of
the grand jury materials.1 This panel of judges from the United States Court of

Appeals for the Sixth Circuit was assigned to hear the appeal by designation
after the judges of the Eleventh Circuit recused themselves because they had
participated in the investigation of Judge Hastings.
12

We consider the Committee's request within the framework of Fed.R.Crim.P.

6(e), which codifies the traditional general rule of grand jury secrecy and sets
out several exceptions to it. The only exception arguably applicable to the
Committee request is subsection 6(e)(3)(C)(i), which authorizes disclosure
"when so directed by a court preliminarily to or in connection with a judicial
proceeding." Rule 6(e)(2) states a general rule of grand jury secrecy, while 6(e)
(3) provides the following exception:

13

(C) Disclosure otherwise prohibited by this rule of matters occurring before the
grand jury may also be made--

14

(i) when so directed by a court preliminarily to or in connection with a judicial

proceeding;

15

....

16the court orders disclosure of matters occurring before the grand jury, the
If
disclosure shall be made in such manner, at such time, and under such conditions as
the court may direct.
17

Judge Butzner below held, and the parties agree, that within the meaning of the
rule a Senate impeachment trial qualifies as a "judicial proceeding" and that a
House impeachment inquiry is "preliminary to" the Senate trial. We therefore
do not have before us an issue concerning the interpretation of this language of
Sec. 6(e)(3)(C)(i).

II.
18

The decisive question before us is whether the Committee on the Judiciary has
made a showing of particularized need sufficient to warrant disclosure of the
grand jury materials requested. The leading case describing the showing that a
party seeking grand jury transcripts under Rule 6(e) must make is Douglas Oil
Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156
(1979). Under Douglas Oil, parties seeking grand jury transcripts must show
(1) that the material they seek is needed to avoid a possible injustice in another
judicial proceeding, (2) that the need for disclosure is greater than the need for
continued secrecy, and (3) that their request is structured to cover only material

so needed. 441 U.S. at 222, 99 S.Ct. at 1674. The Douglas Oil standard applies
to both governmental bodies and private litigants, but the interests that underlie
the policy of grand jury secrecy are affected to a lesser extent when disclosure
to a governmental body is requested. United States v. Sells Engineering, Inc.,
463 U.S. 418, 445, 103 S.Ct. 3133, 3149, 77 L.Ed.2d 743 (1983) ("Nothing in
Douglas Oil, however, requires a district court to pretend that there are no
differences between governmental bodies and private parties.")
19

In determining whether the Committee on the Judiciary has met the

"particularized need" standard, we are thus not foreclosed from examining
considerations which are peculiar to the Committee as a government movant.
The standard for government movants remains one of particularized need, but
under this standard we may weigh the public interest served by disclosure.
Illinois v. Abbott & Assoc., Inc., 460 U.S. 557, 568 n. 15, 103 S.Ct. 1356, 1361
n. 15, 75 L.Ed.2d 281 (1983).

20

The interests underlying the principle of grand jury secrecy were enunciated
earlier by the Supreme Court in United States v. Proctor & Gamble Co., 356
U.S. 677, 681 n. 6, 78 S.Ct. 983, 986 n. 6, 2 L.Ed.2d 1077 (1958):

21 To prevent the escape of those whose indictment may be contemplated; (2) to

(1)
insure the utmost freedom to the grand jury in its deliberations, and to prevent
persons subject to indictment or their friends from importuning the grand jurors; (3)
to prevent subornation of perjury or tampering with the witnesses who may testify
before [the] grand jury and later appear at the trial of those indicted by it; (4) to
encourage free and untrammeled disclosure by persons who have information with
respect to the commission of crimes; (5) to protect [the] innocent accused who is
exonerated from disclosure of the fact that he has been under investigation, and from
the expense of standing trial where there was no probability of guilt.
22

The only one of these policy considerations affected by disclosure to the

Committee is the encouragement of free and untrammeled disclosures by
persons who have information with respect to the commission of crimes. Grand
Jury 81-1 (MIA) has ended its activities, thus reducing the need for secrecy.
See Douglas Oil, 441 U.S. at 222, 99 S.Ct. at 1674.

23

Although the need for secrecy is less compelling in view of the termination of
the grand jury, some secrecy interests remain. Persons who testified before the
grand jury did so with the expectation that their testimony would remain secret.
Additionally, persons called upon to testify before future grand juries will also
consider the likelihood that their testimony may one day be disclosed to outside
parties. Persons who are not persuaded that their testimony, or even the fact

that they testified, will remain secret may be deterred from testifying. Although
these interests are always present and a source of legitimate concern, they are
not as compelling in this case as in some other cases involving grand jury
secrecy. Judge Hastings has not directed this Court's attention to any specific
harm that would result from disclosure of the grand jury records to the
Committee; the Department of Justice has stated that it has "no objection" to
this disclosure to the Committee.
24

Disclosure is appropriate only in those cases in which the need for disclosure
outweighs the interest in secrecy. Douglas Oil, 441 U.S. at 223, 99 S.Ct. at
1675. As the considerations justifying secrecy become less relevant, the burden
of showing the need for disclosure is lessened. Id; see also United States v.
Socony-Vacuum Oil Co., 310 U.S. 150, 234, 60 S.Ct. 811, 849, 84 L.Ed.1129
(1940) ("[A]fter the grand jury's functions are ended, disclosure is wholly
proper where the ends of justice require it."). However, a lessening of the
burden is not an elimination of the burden. The Committee must assert a
particularized need for the grand jury records.

25

The Committee has asserted a particularized need sufficient to warrant

disclosure in this case. The Committee has asserted an interest in conducting a
full and fair impeachment inquiry. The Committee's need for grand jury
material, which may contain the freshest recollections of some of the key
witnesses to the events being investigated by the grand jury, is particularly
compelling in this inquiry, since the events which are the subject of the
impeachment inquiry took place almost seven years ago.

III.
26

Judge Hastings argues in response that whatever "flexible"2 showing of

particularized need may be normally required by rule 6(e) under the Douglas
Oil test, that showing must be different and much stronger in this case because
disclosure here upon the request of another coordinate branch constitutes an
"inter-branch transfer" and thus should be closely scrutinized under a separation
of powers analysis. He argues that disclosure here creates the potential for
abuse of power by the executive branch by making the executive branch, and
perhaps the judicial branch, an arm of the legislative branch in the
impeachment process. He argues that disclosure allows an overlapping or
mixing of the legislative impeachment powers with the executive power to
enforce the law. It also mixes the impeachment power with the judicial power
to conduct grand jury investigations. Disclosure allows, in Judge Hastings'
view, members of the executive and judicial branches to abuse their legitimate
functions by exercising in part the impeachment function vested exclusively in

Congress by the Constitution. Judge Hastings argues that disclosure here

creates an incentive for the executive and judicial branches to investigate and
harass officials in order to aid in their impeachment.
27

In Judge Hastings' view, the executive branch abused the grand jury process
and, frustrated by his acquittal, is now seeking to reuse the grand jury materials
to impermissibly influence the actions of the legislative branch in an effort to
oust a politically undesirable member of the judicial branch. He thus alleges an
intrusion by the Executive upon the Judiciary and an intrusion by both the
Executive and the Judiciary upon the Legislative.

28

This argument that a stronger or more strict showing of "particularized need" is

per se required in impeachment cases does not take into account the built-in
protections inherent in the separation of powers.

29

The unique nature of our constitutional system of separation of powers

established in the original Constitution of 1789 arises from the conscious effort
of its framers to preserve constitutional liberty through a complex selfcorrecting process. As one of The Federalist authors wrote, the founders
provided the ultimate guarantee against overreaching by any of the three
branches "by so contriving the interior structure of the government as that its
general constitutent parts may, by their mutual relations, be the means of
keeping each other in their proper places.... Ambition must be made to
counteract ambition." The Federalist No. 51 at 336-37. (A. Hamilton or J.
Madison) (Modern Library ed.).

30

This concept reflects Montesquieu's division and allocation of the powers of

government in three separate branches so that democracy or "the power of the
people [will not be] confounded with their liberty": "Democratic ... states are
not in their own nature free" because "constant experience shows us that every
man invested with power is apt to abuse it, and to carry his authority as far as it
will go." Thus, "[t]o prevent this abuse, it is necessary from the very nature of
things that power should be a check to power." Montesquieu, The Spirit of the
Laws, bk. 11, chs. 2, 4 at 150 (Hafner ed. 1949, translated by Thomas Nugent)
(first published in 1748).

31

After proposing the division of government in three branches, Montesquieu

explained how the impeachment process carries out his objectives. It is a check
on the other two branches:

32

It might also happen that a subject intrusted with the administration of public

affairs may infringe the rights of the people, and be guilty of crimes.... But, in
general, the legislative power cannot try causes: and much less can it try this
particular case, where it represents the party aggrieved, which is the people. It
can only, therefore, impeach. But before what court shall it bring its
impeachment? Must it go and demean itself before the ordinary tribunals ...?
No: in order to preserve the dignity of the people and the security of the
subject, the legislative part which represents the people [in our Republic, the
House] must bring in its charge before the legislative part which represents the
nobility [in our Republic, the States represented by the Senate], who have
neither the same interests nor the same passions.
33

Id., bk. 11, ch. 6 at 159.

34

One of the very purposes of an independent House impeachment inquiry is to

determine whether impeachment is warranted. The power to impeach is the
"awful discretion ... to doom to honor or to infamy." The Federalist No. 65 at
426 (A. Hamilton) (Modern Library ed.). If, as Judge Hastings asserts, the
Executive or the Judiciary or both are engaged in a vendetta against him in
connection with the operation of the grand jury, his ultimate protection is to be
found in the constitutional commitment of the sole power of impeachment to
the House and of the trial of impeachments to the Senate, "who," in
Montesquieu's words, "have neither the same interests nor the same passions."
The independent check of the two Houses provides the remedy for possible
abuse by the other two branches.

IV.
35

Under proper separation of powers analysis, we "must balance the

constitutional weight of the interest to be served against the danger of intrusion
on the authority and functions of the [judicial] branch." Nixon v. Fitzgerald,
457 U.S. 731, 754, 102 S.Ct. 2690, 2703, 73 L.Ed.2d 349 (1982). See United
States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); see
generally Note, Separation of Powers and Judicial Service on Presidential
Commissions, 53 U.Chi.L.Rev. 993, 1004-11 (1986). The policy of grand jury
secrecy, whether viewed as a deeply-rooted tradition of the common law or as
itself implicit in the Fifth Amendment guarantee of indictment for "infamous
crime," is nonetheless a generalized one. The balancing that must take place is
between the specific need of the Committee for material necessary to its
constitutionally empowered task of impeachment in this case versus the
specific secrecy interests that remain in these grand jury materials.

36

The issue is whether action by the legislative branch in pursuance of its lawful

authority has the potential to prevent the judicial branch from "accomplishing
its constitutionally assigned functions" of protecting grand jury secrecy. Nixon
v. Administrator of General Services, 433 U.S. 425, 443, 97 S.Ct. 2777, 53
L.Ed.2d 867 (1977). Where the potential for disruption of the judicial function
is present, we must "determine whether that impact is justified by an overriding
need to promote objectives within the constitutional authority of Congress." Id.
37

As noted above, neither Judge Hastings, nor the Department of Justice, nor any
other person has articulated to this Court any specific interest in secrecy in these
materials.

38

Thus, applying the requirements of rule 6(e) in this context, we hold, taking
into account the doctrine of separation of powers, that a merely generalized
assertion of secrecy in grand jury materials must yield to a demonstrated,
specific need for evidence in a pending impeachment investigation. This
conclusion is strengthened all the more when the "invading" branch acts to
"serve broad public interests-- ... not in derogation of the separation of powers
but to maintain their proper balance, ... or to vindicate the public interest in an
ongoing [investigation]." Nixon v. Fitzgerald, 457 U.S. at 754, 102 S.Ct. at
2703 (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct.
863, 96 L.Ed. 1153 (1952) (Steel Seizure case)).

39

An additional reason for disclosing the grand jury materials to the Committee
under rule 6(e) is found in the principles of comity that inform the relationships
between the branches of government. Under a proper conception of the
separation of powers, there should be a degree of cooperation between the
legislative and judicial branches. The Constitution does not contemplate
silence, or hostility, or a total separation of authority among the three branches
of government. Instead, the framers contemplated a dynamic interaction among
the branches, in which a system of checks and balances serves to prevent
overreaching by any one branch. See Nixon v. Administrator of General
Services, 433 U.S. at 442-43, 97 S.Ct. at 2789-90 (citing Steel Seizure case,
343 U.S. at 635, 72 S.Ct. at 870 (Jackson, J., concurring), and The Federalist
No. 47 (J. Madison)).

40

Judge Hastings' argument is not based on the dispersion and sharing of power
envisioned by the framers and by Montesquieu. It is based on a strict tripartite
division of governmental territory unconnected by bridges, roads, rail, or any
other means of intercourse. The framers did not contemplate that the branches
would communicate by smoke signals from distant mountain tops. Rather, a
number of functions were mixed between the legislative and the executive, e.g.,
the war power, the treaty power, the appointive power, the budgetary process,

the spending power. In all of these areas of government, the two branches
check each other and there must be cooperation if government is to function.
41

Judge Hastings' absolutist argument for strict separation is particularly

inappropriate with respect to the function of grand juries. A mixing of functions
and the need for intercourse between the executive and the judicial branch is
clearly present in the operation of grand juries. The grand jury as an institution
has one foot in the judicial branch and the other in the executive. The judicial
branch has certain functions in instructing and controlling grand juries, and the
executive submits evidence and makes recommendations to the grand jury. The
two branches check each other in the enforcement of our system of criminal
justice and thereby deter in part the possible abuse of power in the investigation
and charging of criminal offenses. As in other areas where the framers allocated
a function or institution to two branches of government, a high degree of
cooperation is needed if the system is to function.

42

A prior instance of the type of cooperation contemplated by principles of

interbranch comity is the cooperation extended to the judiciary by the House in
litigation stemming from the Watergate scandal. In 1974, the District Court for
the District of Columbia, in connection with the criminal prosecution of former
Attorney General John W. Mitchell, subpoenaed certain evidence gathered by
the Committee on the Judiciary in its inquiry into the impeachment of President
Richard M. Nixon. The House adopted a resolution granting such access to the
evidence as would not violate the privileges or constitutional powers of the
House. See 3 Deschler's Precedents of the U.S. House of Representatives, ch.
14, Sec. 6.13. Although in the instant case the Committee requested rather than
subpoenaed records, this Court should grant such access to the House as will
not violate our privileges or constitutional powers. Deference to principles of
comity does not entail simply giving the House any materials it requests.
Comity is, however, a factor to be weighed in favor of disclosure when making
the Rule 6(e) analysis.

43

The Committee asserts in its brief that "without full access to the grand jury
materials, the public may not have confidence that the Congress considered all
relevant evidence. To deny access to these materials would be nothing short of
denying Congress--and the public--the right to information that may shed light
on the truth." Public confidence in a procedure as political and public as
impeachment is an important consideration justifying disclosure.

V.
44

Judge Hastings also argues that the House's request is too broad. While requests

for grand jury disclosure usually are limited to the testimony of specific
witnesses, the Committee's request for disclosure of the entire grand jury record
is appropriate in this case.
45

A unique aspect of the Committee's inquiry is its undertaking of what is

essentially a de novo review of facts which have already been the subject of
more traditional judicial proceedings. In order to conduct a full and fair
investigation, the Committee needs to have access to all of the evidence which
is available. The recommendation of the judicial branch concerning
impeachment of Judge Hastings was based on access to the whole grand jury
record, and that same access should not be denied Congress.

46

Judge Hastings argues that the Committee must rely on the report and record
forwarded to it by the Judicial Conference unless it can show that the report
and record are insufficient. This argument misapprehends the relationship
between the Judicial Conference and the House of Representatives. Although
the Judicial Councils Reform and Judicial Conduct and Disability Act provides
for the transmission of the Judicial Conference's report and determination that
impeachment may be warranted to the House of Representatives, it in no way
limits the investigatory power of the House in impeachment proceedings. Such
a holding would clearly violate separation of powers principles.

47

Judge Hastings also argues that the order granted disclosure to too many
people. Judge King's order noted that the Committee intended to receive the
materials in executive session "in accordance with the confidentiality
procedures agreement attached hereto...." (App., p. 13). The confidentiality
procedures provide for access by "Members of Congress." Judge Hastings
contends that members of the Senate are not within the class of persons to
whom disclosure could properly be approved in connection with an
impeachment inquiry. He also contends that allowing senators to have access to
the materials conflicts with the separation of the impeachment and removal
powers between the House and the Senate, as well as undermining his interest
in preserving his right to a fair trial in the Senate.

48

Our response to this argument is that by this order we grant disclosure only to
the body that made the request: namely, the House of Representatives. The
Constitution assigns the House and Senate separate functions and powers in the
impeachment and removal process. The House holds the sole power of
impeachment.3 It also holds investigative powers that are ancillary to its
impeachment power. Only the House may decide whether to investigate,
impeach, and prosecute public officials upon allegations that they have
committed high crimes or misdemeanors in office. These powers are in the sole

domain of the House and are not shared with or exercised by the Senate.
49

The Senate, on the other hand, holds the sole power to try impeachments and to
order removal from office upon conviction. If the House approves and
transmits articles of impeachment, the Senate must exercise its judicial power
and convene as a court of impeachment. The Senate must then sit as judges and
jurors to hear such evidence as is admissible and arguments as are made to
decide the case.4

50

In seeking disclosure of the grand jury record, the Committee on the Judiciary
based its request upon the investigative powers that the House holds ancillary
to its power of impeachment. This court should not grant disclosure of the
grand jury materials to persons other than those covered by this power. Because
the sole discretion to decide whether articles of impeachment are to be
approved lies with the House, the Senate has no constitutional role in that
decision. The Senate has not requested disclosure, and our order is limited to
the House.

51

The argument that our order should specifically require the Judiciary
Committee to adopt confidentiality procedures that deny senators access to the
materials is without merit. Judge Hastings acknowledges that once the
materials are disclosed, the court cannot enforce the Committee's
confidentiality procedures. Thus, even assuming that the court could withhold
disclosure until procedures were adopted which limited access, Congress would
be free to amend or abandon the procedures at any time.

52

We do not read the District Court opinion either to have imposed or not
imposed confidentiality strictures upon the Committee. Judge Butzner's order
expressly declined to place limitations upon the Committee. Judge King's order,
which Judge Butzner refused to stay, merely took note that the Committee had
advised the court that it intended to "receive the requested grand jury materials
in executive session in accordance with the confidentiality procedures
agreement." What we must decide is simply whether to disclose the materials
to the Judiciary Committee; what the Committee does after disclosure is outside
of our jurisdiction. The reason for this conclusion is basic; as stated above, the
sole power of impeachment is vested in the House. The Speech and Debate
Clause prevents us from questioning Congress about actions taken in the
impeachment process. The Speech and Debate Clause prevents us from
questioning Congress about actions taken in the impeachment process. The
Speech and Debate Clause is applicable because impeachment is viewed as a
legislative activity in the sense that it is one of the "other matters which the
Constitution places within the jurisdiction of either House." Gravel v. United

States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583 (1972)
(defining legislative activity).

53

Finally, we reemphasize that our decision affirming the District Court's finding
that the House has shown a "particularized need" for the grand jury records
does not carry us into the area reserved to the House by the Constitution. This
disposition is not an expression of the propriety or impropriety of an
impeachment. Such a decision is within the exclusive province of the House
and the Senate.

54

In accordance with the above reasoning, the decision of the District Court is
AFFIRMED.

55

GUY, Circuit Judge, concurring in part and dissenting in part:

56

I agree with the substantive conclusions reached by the court but write
additionally to address certain procedural problems which are capable of
repetition.1 The Committee on the Judiciary of the United States House of
Representatives (Committee) advanced three theories under which it was
entitled to receive and the court was entitled to release requested grand jury
materials: (1) the constitutional impeachment power of the House, (2) the
inherent supervisory power of the district court over grand juries, and (3)
Fed.R.Crim.P. 6(e)(3)(C)(i).2 We have elected to address the request only in
terms of Rule 6(e)(3)(C)(i) (hereinafter (C)(i)). This is particularly appropriate
since the parties do not argue that this section is inapplicable and it enables us
to reach a decision without the exploration of more nebulous constitutional and
"inherent power" grounds.

57

I would suggest that (C)(i) petitions require initially and on review a three-step
analysis. First, is this an appropriate circumstance for a (C)(i) request? This is a
legal conclusion and is reviewed de novo. Second, if there is a proper (C)(i)
request from a procedural standpoint, has there been the requisite showing of
particularized need? This would normally be a mixed question of law and fact
and would be reviewable de novo. Third, in the grant or denial of the request,
was discretion properly exercised? This latter decision is reviewed on an abuse
of discretion standard. When this suggested analysis is applied here, it results in
my reaching the following conclusions.

58

Although the Committee simply sent a letter asking for the grand jury
materials, that letter is properly construed as a petition seeking (C)(i)
disclosure. Under Rule 6(e)(3)(D), when such a petition is filed, the proceeding

may only be ex parte if the government is the petitioner.3 Although the

Committee is part of government in a broad sense, it is more logical to
conclude that the "government" referred to in Rule 6(e)(3)(D) refers to the
government as defined in Fed.R.Crim.P. 54(c).4 Thus, when the district court
originally proceeded ex parte, it was in error as notice should have been given
to the "attorney for the government" and "the parties to the judicial
proceeding," which in this case is Judge Hastings. I would conclude any error
was harmless, however, for the following reasons: (1) the court did notify the
government and Judge Hastings of the entry of its order before any materials
were actually released; (2) the government does not object to disclosure; and
(3) Judge Hastings, by filing a stay motion and appeal, has had an opportunity
to be heard in the district court and on appeal. Thus, the district court correctly
concluded that this was an appropriate circumstance to consider a (C)(i)
request.
59

Judge Merritt has dealt fully with the particularized need issue and nothing
further need be said.

60

The last inquiry in the suggested three-part analysis concerns whether the court
properly exercised its discretion in the order of release it issued. Although in
different cases the focus of this inquiry will vary, in this case the only question
raised concerns the propriety of allowing the Senate to have access to the grand
jury materials at this time. On this issue, I part company with the majority's
analysis, although it would appear that little difference in result is likely. The
majority indicates that the material may only be given to the Committee but
acknowledges the Committee can then do with it as they see fit.

61

I have no quarrel with this conclusion, and were I exercising discretion as a trial
judge, I would have done as the majority suggests. However, I cannot conclude
that the district court under these circumstances abused its discretion by
allowing the materials to be released in accordance with the Committee's
confidentiality rules. Given that this all occurs long after the grand jury has
finished its work, the criminal trial has concluded, and the Committee has
already made public a synopsis of the grand jury proceedings, I cannot say the
district court abused its discretion in allowing initially what the majority
concludes can happen anyway. It seems to me that the majority has merely
substituted its discretion for that of the district court.

62

Finally, on the discretion issue, I would emphasize that it is still within the
district court's discretion to deal with other (C)(i) disclosure requests. All the
district court did here was to turn a copy of the grand jury materials over to the

Committee. The district court is still the custodian of the official record of the
grand jury, and thus it is to the district court that Judge Hastings initially should
make his showing of particularized need if he seeks a copy of the grand jury
record.

Honorable Gilbert S. Merritt, U.S. Circuit Judge for the Sixth Circuit, sitting by
designation

**

Honorable Nathaniel R. Jones, U.S. Circuit Judge for the Sixth Circuit, sitting
by designation

*** Honorable Ralph B. Guy, Jr., U.S. Circuit Judge for the Sixth Circuit, sitting by
designation
1

Although Judge Hastings' briefs and papers on appeal can be read as presenting
on appeal the issue of disclosure to him and to the public, his counsel at oral
argument made clear that these issues were not being pursued and, to the extent
they were presented in his papers, were withdrawn. We therefore need not
address the part of Judge Butzner's opinion that states that Judge Hastings must
first seek disclosure of the material from the Committee. Rather than seek
disclosure from the Committee, Judge Hastings may of course seek disclosure
from the District Court under Rule 6(e) on the basis of particularized need

The Douglas Oil standard is a highly flexible one, adaptable to different

circumstances and sensitive to the fact that the requirements of secrecy are
greater in some situations than in others. Hence, although [Illinois v. ] Abbott
and the legislative history foreclose any special dispensation from the Douglas
Oil standard for Government agencies, the standard itself accommodates any
relevant considerations, peculiar to Government movants, that weigh for or
against disclosure in a given case
Sells, 463 U.S. at 445, 103 S.Ct. at 3149.
3 U.S. Const. Art. I, Sec. 2, cl. 5 provides in part:
The House of Representatives ... shall have the sole Power of Impeachment.
4 U.S. Const. Art. I, Sec. 3, cl. 6 provides in part:
The Senate shall have the sole Power to try all Impeachments. When sitting for
that Purpose, they shall be on Oath or Affirmation.... And no Person shall be
convicted without the Concurrence of two thirds of the Members present.

The House Judiciary Committee has already requested additional grand jury
materials over and above those that are the subject of this appeal

Rule 6(e)(3)(C)(i) reads as follows:

(C) Disclosure otherwise prohibited by this rule of matters occurring before the
grand jury may also be made-(i) when so directed by a court preliminarily to or in connection with a judicial
proceeding; ....

Rule 6(e)(3)(D) reads as follows:

(D) A petition for disclosure pursuant to subdivision (e)(3)(C)(i) shall be filed
in the district where the grand jury convened. Unless the hearing is ex parte,
which it may be when the petitioner is the government, the petitioner shall
serve written notice of the petition upon (i) the attorney for the government, (ii)
the parties to the judicial proceeding if disclosure is sought in connection with
such a proceeding, and (iii) such other persons as the court may direct. The
court shall afford those persons a reasonable opportunity to appear and be
heard.

Fed.R.Crim.P. 54(c) reads in pertinent part as follows:

(c) Application of Terms. As used in these rules the following terms have the
designated meanings.
....
"Attorney for the government" means the Attorney General, an authorized
assistant of the Attorney General, a United States Attorney, an authorized
assistant of the United States Attorney,....